Theodore B. Olson ’65 Joins Former Rival to Fight Proposition 8

Once pitted against each other in Bush v. Gore, which decided the 2000 presidential election, Berkeley Law graduate Theodore B. Olson ’65 and fellow attorney David Boies have teamed up to challenge Proposition 8—the November ballot measure that barred same-sex marriages in California.

Olson, who represented former President George W. Bush in Bush v. Gore, and Boies, who represented Democratic challenger Al Gore, filed a federal lawsuit which states that Proposition 8 creates a class of “second-class citizens” and violates the U.S. Constitution.

“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment,” the suit says. They also filed a preliminary injunction requesting a halt to the enforcement of Proposition 8 until the case is resolved, which would immediately reinstate marriage rights to same-sex couples.

This legal challenge comes one day after the California Supreme Court voted 6-1 to uphold the validity of Proposition 8 under the state constitution. The Court ruled that California voters had a legal right to amend their constitution and that Proposition 8 did not violate gay rights under state law. The opinion did seek to limit the decision’s impact, however, and came from the same court that in May 2008 ruled that an existing state law barring same-sex marriage was unconstitutional under the privacy, due process and equal protection guarantees of the California Constitution.

Olson and Boies filed the case on behalf of two couples that wish to be married, including a lesbian couple from Berkeley. Speaking Wednesday at a press conference in Los Angeles, they claimed that the California Supreme Court’s decision was limited to interpreting the state constitution—and that a right guaranteed by the U.S. Constitution cannot be infringed by any state measure.

“Yesterday,” said Olson, “the California Supreme Court said that the California Constitution compels the state to discriminate against gay men and lesbians who have the temerity to wish to express their love and commitment to one another by getting married. These are our neighbors, co-workers, teachers, friends, and family, and courtesy of Prop. 8 California now prohibits them from exercising this basic, fundamental right of humanity. Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.”

The lawsuit argues that limiting gay couples to “separate but unequal” domestic partnerships violates the U.S. Constitution, and that such partnerships are not an adequate substitute for civil marriage in California because they don’t provide the same legal and government benefits.

Olson, the U.S. Solicitor General from 2001 to 2004, has argued 55 cases in the U.S. Supreme Court and won more than 75 percent of them. He served as private counsel to Presidents Ronald Reagan and George W. Bush, and worked for both in high-level positions at the U.S. Department of Justice. The National Law Journal has repeatedly listed Olson among the country’s most influential lawyers, and New York Times columnist William Safire described him as this generation’s “most persuasive advocate” before the Supreme Court and “the most effective Solicitor General” in decades.